Statement of Randall Kennedy, Professor, Harvard Law School
Testimony Before the Subcommittee on Human Resources
of the House Committee on Ways and Means
Hearing on Interethnic Adoptions
September 15, 1998
That the Subcommittee on Human Resources of the House of Representatives is conducting a hearing on the implementation of the 1996 interethnic adoption amendments to the Multi-Ethnic Placement Act of 1994 is an encouraging and useful development. The hearing
indicates the Subcommittee's awareness that effectively addressing a deeply-ingrained social problem requires more than the mere enactment of good legislation. It also requires attentiveness to the means by which legislation is enforced.
The social problem at issue is race-matching -- the practice of preferring, if not requiring, that parentless children be put into the care of adults deemed to be of the same race as the children. In the 1996 amendments to the Multiethnic Placement Act, Congress sought to abolish race matching. That effort was worthwhile and long overdue because race matching is a hurtful practice. It harms needy children materially by needlessly narrowing the pool of adoptive or foster parents potentially able to nurture them. Racial matching, in other words, cruelly orphans children who have already been orphaned. Unsurprisingly, the disastrous consequences of race matching fall most heavily on racial minority communities since the percentage of minority children in need of adoptive homes and foster care is far greater than the percentage of racial minorities in the population. Nationwide in 1994 there were about 100,000 children eligible for adoption; forty percent were black, though blacks constituted only about ten to fifteen percent of the overall population. While two years and eight months was the median length of time that children in general waited to be adopted, the wait for black children was often twice that long.
Race matching also harms the entire society morally and spiritually by reiterating the baneful notion, long entrenched in law and custom, that people of different races should not be permitted to disregard racial distinctions when creating families. A preference -- any preference -- for same race adoptions or foster care stigmatizes interracial child placements as second-rate alternatives, the arrangement authorities turn to when other, "better" possibilities are foreclosed. A preference for same-race placements buttresses the notion that in social affairs race matters and should matter in some fundamental, unbridgeable, permanent sense. It belies the belief that love and understanding can be boundless and instead instructs us that affections must be and should be bounded by the color line.
Proponents of race-matching assert that parents of the same race as a child can, on average, better prepare that child for this society than parents of a different race. This rationale is faulty. Except in the most extraordinary circumstances, racial generalizations cannot properly justify racial discriminations even if the generalizations are accurate. If an employer used race as a basis for preferring white applicants on the grounds that, on average, white people have access to more education than blacks, the employer would rightly be condemned and in violation of scores of state and federal laws --even if the generalization upon which the employer relied was accurate. That is because our society, properly fearful of the tendency of racial generalizations to blind decisionmakers, insists that individuals should be evaluated regardless of race. Thus, even if one believes that, on average, same-race adoption or foster care is more effective for purposes of socialization than interracial adoption or foster care, our commitment to individualized assessment should caution us against the use of racial matching. Furthermore, there is no empirical basis for believing that same-race adoption or foster care is better than interracial adoptions or foster care. The former are more prevalent and more fully reflect existing social patterns and expectations. But that does not make them better.
One need not go this far, however, in order confidently to reject race matching. All one need do is remember two things: (1) that race matching reduces the number of parentless children who will ultimately receive the blessings of permanent adult supervision in an adoptive or foster home and (2) that what parentless children most need are not "white," "black," "yellow," or "brown" parents but loving parents irrespective of race.
The 1994 Multiethnic Placement Act took a step in the right direction by expressly prohibiting child care agencies from using racial difference alone as a basis for preventing or delaying adoption or foster care placements. That Act, however, substantially undercut its own aims by explicitly permitting the racial backgrounds of children and caregivers to be taken into account as one of among several factors in determining where to place a child. This was a mistake in at least two ways. First, by authorizing race to be taken into account at all on a routine basis, MEPA legitimated a moderated form of race matching that still posed a risk of delaying or denying adoptions or foster care placements. Second, by authorizing even a small amount of racial matching, Congress regrettably placed a federal imprimatur upon an unjustified and therefore wrongful racial discrimination -- a small and limited racial discrimination, but a racial discrimination nonetheless.
Happily, and to its credit, Congress quickly revisited the issue and erased the authorization for taking race into account along with other considerations. Amending MEPA, Congress provided that
[N]either the State nor any other entity in the State that receives funds from the Federal Government and is involved in adoption or foster care placement may -- (A) deny to any person the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or national origin of the person, or of the child, involved ; or (B) delay or deny the placement of a child for adoption or into foster care, on the basis of the race, color, or national origin of the adoptive or foster parent, or the child involved.
Whether this legislation will effectively assist real live people or become a mere, hollow symbol of good intentions depends on enforcement. Enforcing legislation of this sort that seeks to uproot deeply-rooted prejudices and habits is always difficult. It requires publicizing the law. It requires individuals being willing to spend time, energy, and money to vindicate the rights that Congress has created. It requires administrative and judicial officials being willing to follow the law, even though they might doubt its wisdom. Enforcing the amendments to MEPA, moreover, pose a special challenge because the decisions in question -- child placement selections -- are highly discretionary, typically made outside of public scrutiny, and generally accorded considerable deference by judges. For these reasons there is good cause to be concerned about whether, or to what extent, the new law has changed decisionmaking on the ground.
Among the many impediments to enforcement that confront MEPA and its amendments, three stand out. The first is simple recalcitrance: in some jurisdictions, welfare agencies continue to attempt to delay or prevent certain prospective adoptions or foster care placements out of a conviction that it is better, if possible, to place children of a given race with adults of the same race. One way to address this problem is through education and moral suasion. Members of Congress, individually and collectively, should make it known to the public precisely why race matching is bad. As long as substantial portions of the public support race matching, resistance to MEPA as amended will find refuge and nourishment.
Second, the open-ended, highly discretionary character of child placement decisions invites evasion. It is quite clear that proponents of race matching are now seeking to sidestep the amendments to MEPA by relying upon considerations that are not expressly racial but that are easily made into pretexts that camouflage racial decisionmaking. Two of these considerations are (1) preferences for relatives and (2) notions of cultural competency. The first refers to the policy of preferring to place a child with an adult to whom he is related as against an adult to whom he is unrelated -- a Congressional preference stated in Section 505 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. In some instances, authorities hostile to interracial adoption or foster care use this preference to preclude such placements -- selecting a same-race arrangement with a relative when, absent the "threat" of an interracial placement, the decisionmaker would not have chosen the arrangement with the relative. This particular mode of resistance to MEPA as amended has arisen in the most heart-wrenching context in which the controversy over interracial adoption has flared: the context in which a foster parent bonds with a child of a different race, seeks to adopt that child, and is then prevented from doing so by child welfare authorities who are hostile to interracial adoption. Such authorities select as the adoptive parent a relative of the same race as the child even when that relative is not as close to the child as the foster parent and will likely prove to be an inferior adoptive parent.
Another mode of resistance to MEPA as amended takes the form of discouraging or preventing interracial adoption or foster care by recourse to the notion of cultural competency: the idea that children have an established heritage that should be nurtured in ways that adults of a different race are unlikely to know and perhaps incapable of learning. Some observers contend, for example, that white adults should not be able to serve as adoptive or foster parents for black children unless the white adults can show their cultural competency to raise correctly a black child. Evidence of such competency might include living in a racially diverse neighborhood, having a racially diverse set of friends, engaging in certain celebrations (e.g. Kwanza), knowledge of black history, and a willingness to undergo sensitivity training and other instruction aimed at enabling the white adult to equip the black child with appropriate "coping skills" and a proper African American identity.
There are a variety of problems with this notion of cultural competency. For one thing, it puts officials in the position of attempting to prescribe "racial correctness." Fortunately, there exists no authoritative criterion by which to measure what sort of ideas or conduct can certifiably be deemed to be properly "black" (or "white" or "yellow" etc.). African Americans (like the individuals constituting all groups in American society) vary tremendously. Many like gospel music or rap. Many do not. Many celebrate Kwanza. Many do not. Many live in predominantly black neighborhoods. Some do not. Many are Christians. Many are Moslems. The idea that public or private child welfare officials would homogenize the varied African American community and then impose that homogenized stereotype upon white adults seeking to provide children with adoptive homes or foster care is a frightening prospect. Worse still is that this dubious concern with cultural competency is often nothing more than a pretext for race matching, a way to continue the racial steering of needy children without expressly saying so.
A third impediment to the enforcement of MEPA and its amendments stems from the mixed feelings towards the law felt by officials within the federal agency most involved in its implementation -- the United States Department of Health and Human Services (the Department). The Department's Administration on Children, Youth and Families has promulgated a memorandum, including responses to questions from the Government Accounting Office, that articulates its understanding of what the amendments to MEPA require. To a large extent, that memorandum evinces an appropriate understanding of the law. Particularly good is the Department's position that a public agency may not lawfully differentiate between otherwise acceptable foster placements even if doing so will not delay or deny the placement of a child. Notice should be taken, though, that with respect to this matter the Department is silent with respect to adoption. One hopes and that this was an inadvertent omission. Concerning the drawing of racial distinctions, the standard that applies to foster care ought to apply as well to adoptions.
Another aspect of the Department's memorandum that needs clarification is the statement that "agencies are not prohibited from discussing with prospective adoptive and foster parents their feelings, capacities, and preferences regarding caring for a child of a particular race or ethnicity, just as they discuss other individualized issues relating to the child." That statement is unobjectionable so long as it merely declares that agencies may discuss matters related to race or ethnicity that are raised by prospective adoptive or foster parents or prospective adoptive or foster children. That statement is objectionable, however, if it means that agencies are authorized to engage in any sort of cultural competency testing or authorized to portray interracial adoptions or foster care as a special category of child placement that is uniquely problematic and thus uniquely in need of justification. One of the biggest social and psychological difficulties confronting the subject of adoption and foster care is the idea that interracial adoption and foster care constitutes a "problem." As long as interracial child placements are seen as a problem and as long as a burden of persuasion is placed upon people who cross racial lines to create adoptive or foster care families, an unspoken discouragement will inhibit people from acting as freely as they might otherwise do.
In several places in the Department's memorandum, moreover, there emerge disturbing tensions. On the one hand, the Department acknowledges its understanding that Congress has forbidden racial matching -- even when racial matching will not delay the placement of a child. On the other hand, at certain points the Department speaks as if Congress had not categorically repudiated all racial matching. Hence the Department writes that "[a]doption agencies must consider all factors that may contribute to a good placement decision for a child, and that may affect whether a particular placement is in the best interest of the child. . . . In some instances it is conceivable that, for a particular child, race, color, or national origin would be such a factor." This statement flies in the face of Congress' decision to remove race, color, and national origin from the menu of possible items that agencies may lawfully take into account in determining an appropriate child placement. Worse, the Department writes that "[w]here it has been established that considerations of race, color or national origin are necessary to achieve the best interests of the child, such factor[s] should be included in the agency's decisionmaking." Here the Department seems to be engaged, frankly, in a usurpation of the Congress' authority to determine public policy. Inasmuch as Congress has determined that neither race nor color nor national origin should be part of the calculation in determining where to place a child for adoption or foster care, there is no justification for the Department, on its own, to assert that such factors should be included in agency decisionmaking. If the Department believes on the basis of its research that the Congress has made a mistake and should change course it should say so. It should not attempt, however, to reserve a power to disregard MEPA as amended, all the while claiming to enforce that law.
A close and somewhat skeptical reading of the Department's memorandum is warranted because, as is widely known, influential persons and groups within the Department's bureaucracy are hostile to the aims and ethos of MEPA, particularly the amendments to it enacted in 1996. For this reason, the Congress will have to be especially vigilant in its oversight to make sure that MEPA and its amendments are vigorously enforced. Such enforcement is urgently needed.